Levinge v Health Professions Council

On an appeal from a professional disciplinary tribunal, the High Court must respect the tribunal’s specialist expertise, its assessment of witnesses and its evaluative judgment. It may intervene where the decision or sanction is wrong, including where material evidence has been rejected for an untenable reason.

In an exceptional and complex case, adequate reasons must be given for rejecting important expert evidence. A finding of misconduct remains distinct from the question whether fitness to practise is impaired. Sanctions serve public protection and confidence in the profession rather than retributive punishment, but conditions must remain reasonable and proportionate to the proved concerns.

The appellant, a music therapist and former programme leader, appealed under article 29(9) of the Health Professions Order 2001 against findings by the Health Professions Council’s Conduct and Competence Committee. The Committee found several allegations concerning her teaching and supervision of students proved as misconduct or lack of competence, found her fitness to practise impaired, and imposed three years of conditions, including clinical supervision.

The appeal challenged the findings, the impairment decision and the proportionality of the sanction. The central issues were whether the Committee had properly evaluated the evidence, whether the historical educational misconduct justified a finding of current impairment, and whether the conditions imposed were justified.

1. The appeal was allowed in part. The Committee’s findings on allegations 2, 3, 4(d), 5 and 7 were supported by evidence and were not shown to be wrong. The Committee was entitled to prefer the evidence of former students, rely on admissible hearsay where no objection had been made, and treat a comparatively straightforward factual dispute as adequately reasoned by reference to the evidence it accepted.
2. Allegation 1 concerned whether the appellant had crossed the boundary between teaching psychodynamic therapeutic techniques and practising them on students. The Committee wrongly rejected important expert evidence merely because the expert had not visited the college. That reason could not rationally affect the cogency of the expert’s evidence. Because the issue was complex and professionally evaluative, the Committee was required to explain its rejection of that evidence. The findings on allegation 1 were therefore flawed.
3. The Committee also erred in finding allegation 6 proved. The evidence showed, at most, that the appellant may not always have attached sufficient weight to placement supervisors’ observations. It did not justify the conclusion that she had ignored that evidence.
4. Misconduct and impairment of fitness to practise are separate stages. The historical nature of the conduct and its occurrence in an educational setting did not prevent a finding of current impairment, since the appellant could resume teaching. The proved misconduct in allegations 2, 3, 4(d), 5 and 7 was sufficient for a properly directed Committee inevitably to find impairment.
5. The condition requiring clinical supervision of the appellant’s clinical practice was unreasonable and disproportionate. There had been no criticism of her conduct towards patients during her long clinical career, and the financial burden of supervision had not been investigated. No useful purpose would be served by remitting allegation 1, and the parties agreed an order giving effect to the judgment.

• Health Professions Council Conduct and Competence Committee: following hearings between 12 April and 24 May 2011, found several allegations proved, found the appellant’s fitness to practise impaired, and imposed a three-year conditions of practice order.
• High Court (Administrative Court): allowed the appeal in part. Findings on allegations 1 and 6 were flawed, but the findings on allegations 2, 3, 4(d), 5 and 7 supported impairment. The clinical supervision condition was quashed as disproportionate.